State ex rel. Greenwood v. Baals

• Decision Date: 28 October 1940
• Citation: 31 N.E.2d 244,66 Ohio App. 255
• Parties: STATE ex rel. GREENWOOD v. BAALS et al.
• Court: Ohio Court of Appeals

31 N.E.2d 244

66 Ohio App. 255

STATE ex rel. GREENWOOD v. BAALS et al.

Court of Appeals of Ohio, First District, Warren.

October 28, 1940

R Hilliard Greenwood, of Lebanon, for relator.

C Donald Dilatush, of Lebanon, for respondents.

HAMILTON Presiding Judge.

This is an original action, brought in this court, in which the relator, Greenwood, seeks a writ of prohibition, to prohibit the respondents from proceeding in a certain action in forcible entry and detainer.

A temporary writ was allowed, returnable on the day and at the time directed therein.

The respondents move to set aside the temporary writ, to refuse the application for a writ of prohibition, and to dismiss the petition of the relator, on the ground it does not state a cause of action, calling for the exercise of the extraordinary writ of prohibition.

In this situation, we are constrained to consider the motion to dismiss as a demurrer to the petition, testing the legal right of the relator to the relief sought.

It may be said in passing that the defendants, other than the Justice of the Peace, are not proper parties to such action and the writ would not obtain as to them in any event.

It appears from the petition that Hazel E. Baals filed an action before Wade S. Brown, Justice of the Peace of Turtlecreek Township, Warren county, Ohio, in forcible entry and detainer; the relator being a tenant of the property of the said Baals.

An affidavit of bias and prejudice was filed by the relator, Greenwood, in that action against Wade S. Brown, the Justice of the Peace, and the court of common pleas transferred the case to the court of James Carman Crane, a Justice of the Peace in Wayne Township, Warren County, Ohio.

When the case was called for trial, Greenwood, the relator here and the defendant in that action, objected to the Justice hearing the case, on the ground that he was not a qualified justice of the peace, in that he failed to file a bond as such, although some months had passed since his election as such Justice of the Peace. He also objected to the Court exercising jurisdiction as a written lease was involved, and the Court had no equity powers to determine the rights under that lease. The justice overruled both motions, and proceeded to the trial of the case.

Whether the court was correct in overruling the motions is not necessary to determine here, because that would be passed upon on error if such proceeding were had.

The case was tried to a jury and the verdict was returned in favor of the plaintiff Hazel E. Baals, finding the defendant relator here, guilty under the charge of forcibly detaining the premises. The justice entered judgment on the verdict, and transferred the case back to the court of Wade S. Brown, the Justice of the Peace in whose...